The Myth Of Finding A 'Balance' In Copyright Laws

from the no-balance-needed dept

It never fails. During various battles over copyright laws, someone will come along and present themselves as wanting to be the "moderate" provider between the warring parties of "users" on one side and "copyright holders" on the other side, declaring that what's really needed is a good "balance" in copyright law that is fair to both sides. News.com has just such an article about the ridiculous new Pro-IP bill. However, as we've discussed before, that's the wrong way to look at it. The more you focus on balance, the more useless your recommendations are. That's because the whole idea is based on a faulty premise that the interests of copyright holders and users are not aligned.

In fact, if structured properly there's no reason that the interests of both sides can't be perfectly aligned, making both sides happy without either having to "give up" something. If you can create a bigger market where both sides come out of the situation better, then there's no balance necessary at all. Balance is only needed when both sides come out slightly worse off. This is even more true these days when the entire dichotomy between "content creators" and "content consumers" has blurred. These days, most people are both content creators and content users. In fact, one of the great things about the internet is that it's completely knocked down the barrier between the two, and helped make it easier than ever to create content the same way content has always been built: by building on other ideas that are out there.

So rather than trying to look for "balanced" solutions that make both parties somewhat worse off, isn't it time we recognized that copyright doesn't have to be a zero-sum game with winners and losers? If you get rid of the restrictions that copyrights artificially impose, you create a non-zero-sum game, where everyone can be better off. It may seem a little trickier for copyright holders, as their business models change, but it expands the overall market for their products while opening up tons of new business models that allow them to profit at a greater rate without pissing off users. Meanwhile, users aren't restricted. So, let's toss out the idea of creating a lose-lose situation around "balance" and focus on building win-win situations that get rid of artificial restrictions and focus on bigger opportunities for everyone.


Reader Comments (rss)

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  1.  
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    Blaise Alleyne (profile), Dec 19th, 2007 @ 9:41pm

    I agree entirely, but I wonder whether some people attempt to use balance in a different way. Maybe, balancing the extent to which copyright protections apply, say finding the right balance between absolutely no copyright and copyright to ridiculously harmful extent.

    That's just to say that some people use the word balance without intentionally trying to imply that each side has to give something up. But I agree the term has those connotations, and it would make sense to either avoid it or to be precise when using it.

     

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  2.  
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    Cynic, Dec 19th, 2007 @ 9:46pm

    In the 21st century almost all actual workers have gotten used to the fact that there is no "fair" any more, it's just the non-workers who are twisting the system to let themselves play golf all day and want to cast into concrete the advantage so they never have to stop playing golf.

    It is much better (though it takes intelligence and some actual WORK) to make the pie bigger for everyone than to argue over the precise size of the slice you are entitled to.

     

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  3.  
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    Michael Long, Dec 19th, 2007 @ 11:30pm

    "If you get rid of the restrictions that copyrights artificially impose, you create a non-zero-sum game, where everyone can be better off "

    I still fail to see how content creators are better off when their work can be immediately ripped off. Who's going to spend $10-million making a motion picture when the second it's released the guy down the street can steal a digital copy and sell tickets to the same show for a buck?

    How many people are going to spend a year writing a book when anyone with a press or printer can republish the same exact work and sell it as his own? How does a publisher recoup an advance?

    When anyone can rip you off then there's no "market to expand". If you're a writer and book A is ripped off there's no market demand for book B, because that's been ripped off too.

    Too many of the "free" models fail to scale when everyone has their hand out, begging for "support" from their fans. Because at some point people think they've done "their part" and become free-rider's, contributing to nothing and consuming everything.

    Sorry, but "fair" means fair to the consumer AND to the creator, and recognizing that regardless of the distribution costs most content of any value takes time and effort and skill and money to create. And that those costs PLUS some measure of profit need to be recouped.

     

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  4.  
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    Blaise Alleyne, Dec 19th, 2007 @ 11:43pm

    Re:

    There's a lot of room to revise copyright without abolishing it.

    A simple example is the length of copyright terms, which generally the life of the author plus 50-70 years. I fail to see how restrictions 50 years after the death of an author provide an incentive for the author to write more.

    Something more reasonable, like 10-15 years (just a suggestion) would be a step towards copyright that is better for both the reader and author, in this case. And applying copyright only to commercial redistribution would be more reasonable, allowing readers to make copies for noncommercial use (e.g. education, personal use, etc.).

    The idea doesn't have to be to abolish artificial restrictions *entirely* but to minimize them, scale them down to a more reasonable level that benefits everyone more than the current overkill.

     

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  5.  
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    Jonas W, Dec 19th, 2007 @ 11:50pm

    Re:

    I think this is an essential point you're making.
    There is an absolute difference between working to produce something and working to avoid working. The first inherently makes the world richer, whilst the latter makes it poorer.
    If these two are "balanced" it will nullify the first and draw everyone away from producing and over to avoiding, making the prospects of a richer world even worse.

     

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  6.  
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    Mike (profile), Dec 20th, 2007 @ 12:30am

    Re:


    I still fail to see how content creators are better off when their work can be immediately ripped off.


    That's because you are incorrectly looking at it as being "ripped off," when you should be looking at it as making something *else* a hell of a lot more valuable.

    You keep making this incorrect assumption, and it blinds you to the other business models that are opened up when you ignore copyrights.

    Who's going to spend $10-million making a motion picture when the second it's released the guy down the street can steal a digital copy and sell tickets to the same show for a buck?

    Oh, there are a ton of business models for movie making. Even if the movie can be ripped off. Certainly, there's value in being an "official" distributor of the movie (witness the difference in prices between *identical* generic drugs and brand name drugs). But, on top of that, you start do add in some interesting business models -- such as if you go see the official version of the movie, you get a discount on seeing the sequel -- or on seeing another movie with the same actor. You build up loyalty points. You offer options like the ability to be an extra in a future movie. Or to meet the star of the movie. There are plenty of things that will be done to make it worthwhile -- and plenty of folks will invest to get those movies made.

    How many people are going to spend a year writing a book when anyone with a press or printer can republish the same exact work and sell it as his own? How does a publisher recoup an advance?

    This one is really laughable. First of all, physical books will keep on selling -- and just ask the publishers of public domain works how good a business that is. It's quite good. Again, the official publisher retains some cachet, and there are numerous business models for book authors that make sense without copyright. I'm not going to mention all of them yet, because I'll be talking about a few at some later date, and I want to save it for that.

    When anyone can rip you off then there's no "market to expand". If you're a writer and book A is ripped off there's no market demand for book B, because that's been ripped off too.

    On that you are totally wrong. You are again thinking that the book is the only product. It's not. Never has been.

    Too many of the "free" models fail to scale when everyone has their hand out, begging for "support" from their fans. Because at some point people think they've done "their part" and become free-rider's, contributing to nothing and consuming everything.

    This is flat out wrong and ignorant. The business models I discuss have nothing to do with "holding out your hand and begging for support." No, they are about charging for scarce goods. It's got nothing to do with begging or voluntary support.

    And there will always be free-riders who contribute nothing, but they won't matter. If anything, they'll help to make the scarce goods more valuable.

    There are countless examples of this happening in practice.

    Sorry, but "fair" means fair to the consumer AND to the creator, and recognizing that regardless of the distribution costs most content of any value takes time and effort and skill and money to create. And that those costs PLUS some measure of profit need to be recouped.

    I'm not sure how much clearer you want me to make it. When you look at the details, getting rid of copyright becomes MORE fair to the creator in that it enables them to make MORE money. You continue to incorrectly assert that without copyright there's less money. That's simply false. Again, take the time to understand the basic economics. Look at how growth works, and you'll begin to understand that a lack of copyright actually encourages growth -- and with that growth will be more opportunities to profit. It's a fundamental aspect of economics.

     

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  7.  
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    Anonymous Coward, Dec 20th, 2007 @ 3:09am

    Free Software As An Example

    Free softwares do not enforce intellectual monopoly. Rather, they used intellectual monopoly laws such as copyright to enforce an opposite effect. Thus creating what some people called, "copyleft".

    That mean anybody can copy, modify, and study the software.

    That freedom have values. This values can never be matched by anybody who wrote proprietary softwares.

    And free software is already kicking butt in the software space. Look at their innovation in how we manage softwares for example. Or you if you want a more flashier example, look at compiz fusion.

    This is one example of how copyright can benefit and create values for the consumers. Copyright can benefit, but if only they get rid of the monopoly aspects.

     

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    Anonymous, Dec 20th, 2007 @ 3:23am

    Best answer

    Instead of making money the mother of invention, let necessity keep its role. That would solve everything.

     

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  9.  
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    DCX2, Dec 20th, 2007 @ 6:16am

    Re: Re:

    The business models I discuss have nothing to do with "holding out your hand and begging for support." No, they are about charging for scarce goods.

    This really is the point to take home. Scarcity is a major factor in economics, and digital goods are not scarce; thus, there is some turmoil as the market tries to settle on a price for digital goods. Note that scarce goods still rake in the dough, though...I hear concerts and merchandise sell well.

    I do think that a "balance" could exist where copyright exists for a relatively short term (7 years, like the original patents?); this short-term monopoly serves the content producer well, minimizing the instance of fake knockoffs, even though there will still be some.

    It is important to accept that knockoffs will occur, and that dragging copyright terms out farther and farther has diminishing returns. For instance, even if copyright were to expire on Mickey Mouse, I bet that Disney would still sell a lot of Mickey Mouse merchandise.

     

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  10.  
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    Wizard Prang, Dec 20th, 2007 @ 8:02am

    But money talks...

    ...and it is the money that is doing the loudest talking here.

    Have you noticed that most of the noise from the Pro-heavy-copyright lobby is being made, not by authors, but by middlemen? Mostly by industry groups representing the Publishing, entertainment and "media" industry?

    The purpose of copyright was and is to give creative people a limited exclusive right to make money from their goods, which will encourage them to continue creating. Not to give their heirs, assignees and representatives an income stream in perpetuity - which is what the copyright lobby really wants.

    I am all for ratcheting up the "heaviness" of copyright law, if it comes with a corresponding reduction in copyright terms. 25 years for books, ten years for movies, 5 years for TV shows - with ONE renewal - if and only if the author is still alive. It is ridiculous to me that "Casablanca" is still under copyright over 50 years later...

    Another thing that the copyright industry does not take into account is severity. The penalty for ripping off a movie should be different if it is pre-release (trade secret?) from when it is out on DVD and when it has been broadcasted (Betamax case?). Right now the law sees no difference.

     

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  11.  
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    Pseudonym, Dec 20th, 2007 @ 8:27pm

    Moral rights

    I normally largely agree with Mike on copyright issues, but I have to disagree on this one. Giving credit is what makes the new economy that Mike is so enamoured of actually work.

    It's cool that Mike allows others to use techdirt material without credit. But take a musician who wants to use the internet to its full advantage, say. You're going to want to get your music out there as much as possible. You want people to copy and share your stuff. But you always want to keep a pointer back to you. That's the whole point, and I don't see anything wrong with backing this up legally.

    In the US, VARA (which only applies to visual arts) gives the artist the following rights:

    1. The right to claim authorship.
    2. The right to prevent the use of one's name on any work the author did not create.
    3. The right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation.
    4. The right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation.
    5. The right to prevent the destruction of a work of art if it is of "recognized stature".

    This should, of course, be read in the context of fair use case law, which protects parody and criticism. J. Random Artist should, obviously, not be able to prevent their name being used on legitimate criticism unless it's actually libel or slander.

    But a work of art is an advertisement for its creator. If it's to work as such, the creator must be allowed to retain the pointer. If you don't give credit, the use is not in any way "fair".

     

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  12.  
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    Blaise Alleyne, Dec 22nd, 2007 @ 1:47pm

    Re: Moral rights

    If attribution is the only reason you think copyright should be around, there's still a lot of reform that can be done.

    As a simple example, look at Creative Commons licensed. You can use a by-attribution license but still allow for non-commercial and/or commercial redistribute, and you can even allow for derivative works as well.

     

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  13.  
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    Andrew Foster (profile), Nov 10th, 2010 @ 8:32am

    There are a ton of business models for movie making. Even if the movie can be ripped off. Certainly, there's value in being an "official" distributor of the movie (witness the difference in prices between *identical* generic drugs and brand name drugs).

    Though I'm not suggesting there's no value at all in being the "official distributor", I don't think this is great as a comparison. The simple fact is that the users of a given drug are all planning to swallow a mystery mouthful of chemicals, and the vast majority of them without any real understanding of what's in the pill or how it works. There's a massive amount of trust necessary in the product. Here, I suspect, lies a very significant part of the motivation to opt for the official distributor and avoid the cheap-looking substitute (even if, the users are thinking, it CLAIMS to be identical).

    That's simply not the case in the same way for, say, a DVD. There's very little trust necessary in buying a DVD, and once non-official copies are legal there's no reason even to suppose they will be inferior in any way to the full-price version. The factors that create official-brand loyalty in the pharmaceuticals industry are almost non-existent in the industries we're talking about here, and I don't think the comparison stands up to much scrutiny.

    This leaves the incentive to buy official, under the copyrightless system you're proposing, down to the new business models you've talked about.

    If you go see the official version of the movie, you get a discount on seeing the sequel -- or on seeing another movie with the same actor. You build up loyalty points. You offer options like the ability to be an extra in a future movie. Or to meet the star of the movie.

    The stuff you're proposing is really interesting, but even you must accept that, once non-official copies are on sale at fifty pence, uptake of the "official product" under a loyalty program would be drastically reduced from the level it's at now. There will always be a massive segment of the market who don't want to meet the stars or be an extra, but simply want to see the film and be entertained by it. They're instantly going to opt out of the version that costs two thousand percent more for the privilege of those bonuses.

    What's more, we already have a system of incentives for the official product in place much stronger than the one you're proposing - we made it literally illegal not to go for the official product. Look at how well the general public bought into that.

    (I'm also not presuming that loyalty rewards are the only possible business model, but I've yet to see anything more convincing proposed - other than state funding for intellectual creators, which has its own raft of problems.)

    I think the fact undeniably remains that the abolition of copyright, at least while these business models are the only alternative being suggested, will inevitably make the business of creating copyright content much less profitable. That can only mean less investment to fund the creators, and pretending otherwise seems naive to me. Anyone who's driven to spend extra cash by the prospect of creating copyright-free content could be releasing public-domain stuff already.

    On that basis I think the thrust of the article kind of dissolves - you've basically said that we shouldn't talk of balance because there's another option that will just be a bonanza for everybody. I don't think it's really been shown yet that that's actually true, and so reluctantly we fall back for the moment to looking for a balance.

    All of that said, I'm not even certain I disagree with you. I just think the argument needs to be tighter before we can call it watertight. It's a great article - I've just found the site and really like it. Cheers!

     

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